Whereas up to now most newspapers have simply asked violators to take their content down, and replace it with links to the papers’ own sites, Righthaven has filed copyright lawsuits against 86 website owners in federal court since March.

Righthaven’s procedure has been to “troll” to find an infringement of [a Las Vegas Review-Journal] copyright to a specific story. It then buys the copyright for that story from the R-J’s owner, Stephens Media LLC, and afterward sues the infringer.

Buying the copyright is an important step because it allows Righthaven to seek statutory damages. (Some of the defendants are arguing that Righthaven lacks standing to sue them because Righthaven didn’t own the copyrights at the time of the initial infringement.)

While the suits are against people who post the entire text of articles, not a fair-use-friendly snippet, they skip the intermediate step of requesting a takedown under the DMCA and go right to demanding $75,000 and the forfeiture of the domain name. The suits seem to be filed scattershot, without paying much attention to the nature of the attribution. Thus, the suits often hit people such as gaming industry observer Anthony Curtis, who posted a story that he was himself interviewed for.

Stephen Bates, an assistant professor at UNLV’s Hank Greenspun School of Journalism, called the Righthaven lawsuits “the McDonald’s coffee cases of copyright litigation — lawful but preposterous. They’re a waste of judicial resources.”

“Like most writers, I’ve had my articles posted online without permission. I’m usually glad to get the attention. When I’m not, I ask that they be taken down. That’s how these things are handled. People go to court as a last resort, not as a first resort — especially when the infringer is a small nonprofit or a blogger who probably doesn’t know better,” Bates said. “Filing suit is a lousy form of community relations. When the defendant is a source for the story, as in the (Anthony) Curtis case, it’s ridiculous.”

While it is a violation of copyright to repost entire newspaper stories, there’s some question of the sense of proportion involved here. When a mom and pop blogger posts a story because it’s something she finds interesting, does she deserve to get hit up for $75,000 plus her website? It’s as yet unknown whether any court will award more than the bare minimum given the lack of profit motives involved.

20 COMMENTS

The subject of an article doesn’t own the copyright of the article so Anthony Curtis was in the wrong unless he was given permission to post the whole article. In the same sense, an author has no right to use an entire review of her book without permission.

I’m afraid this kind of heavy-handed reaction to copyright hijack is inevitable. If shooting warning shots over a crowd doesn’t work and it hasn’t in the case of online copyright, then the next step is to bloody a few people to make them public examples.

Most here cry foul over what the music industry did, but it worked to get the word out that you can’t always get away with music theft.

Actually, Ross, I was saying that Anthony Curtis wasn’t the innocent victim, as this article implied, by putting the interview on his website. He didn’t own the copyright, and, if he didn’t have permission, he was in the wrong. A man who makes his living from copyright should know better.

And I imagine this whole bit with Righthaven is about stopping copyright theft with just enough profit to make it worth their time and legal expenses.

Playing nice with copyright thieves hasn’t stopped them, they’ve only gotten bolder in their belief they can do anything they please, so the victims are fighting back, and it will get ugly, particularly if they bring in Chuck Norris disguised as Righthaven.

Perhaps Marilynn should educate herself a bit more on the true nuances of copyright. I suggest this legal essay:

“The primary purpose of copyright is not, as many people believe, to protect authors against those who would steal the fruits of their labor. However, this misconception, repeated so often that it has become accepted among the public as true, poses serious dangers to the core purpose that copyright law is designed to serve.

The core purpose of copyright law is not difficult to find; it is stated expressly in the Constitution. Article I, section 8, clause 8 of the United States Constitution provides that Congress shall have the power: “to promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

The Anthony Curtis case is by no means the done deal that Marilynn Byerly thinks it is. US courts have generally held that the interviewer is the copyright holder, but the situation is indeed tricky enough that law professor Tim Wu uses an exam question along the lines of “who owns the copyright if a poet composes a poem during an interview?”

Curtis will at least need a very good lawyer. He may be better off counter-sueing. It seems fair to assume that if Curtis holds the copyright to at least part of the interview, the implicit or explicit license to the journalist did not include the right to copyright troll, so the owner of the interviewer’s rights may be infringing.

“Article I, section 8, clause 8 of the United States Constitution provides that Congress shall have the power: “to promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.””

And the SCOTUS has found time and again that Congress has an extreme license to put whatever they want in copyright law, as long as it adheres in some vague and tortured way to the constitution. For instance, the phrase “for limited times” has been interpreted by SCOTUS not as “for a short time,” but as “for any duration congress likes to come up with, as long as they explicitly mention it (i.e. has a limit).”

MarkChan, why copyright was created and what it does in the real world are two different things.

And, you should educate yourself on me. Although I am not a copyright lawyer, I am a layman copyright expert. Go to http://mbyerly.blogspot.com/ and click on the copyright label.

Branko, by agreeing to be interviewed, a person allows the use of his words in an article or whatever. The person/magazine/newspaper who interviews owns the copyright of how the article’s words are put together.

The question of the poem made up on the spot is a very sticky one, indeed, and I leave that one to the courts.

Copyright isn’t a vague noble idea these days. It is very specifically spelled out through laws, etc., and an idea of how copyright should be isn’t a justification for breaking those copyright laws. Anyone who thinks so is in for a very nasty surprise when they get caught.

The most important point in this article is that it is is an example of how copyright owners are trying new and creative ways of going after offenders.

Unlike the movie and record industry, the newspaper and publishing industry and those who supply its content have only one real revenue stream, and if you threaten it by theft, they will go after you. It’s that or die. They have no real choice.

For people who get their information through newspapers and nonfiction and entertainment from fiction, it would be wise to realize that stopping that theft is to their interests, as well.

Original Post: “This seems to be yet another ill-conceived shakedown operation on the model of the RIAA’s thousands of suits against peer-to-peer downloaders, or the thousands of lawsuits filed over Uwe Boll’s movie Far Cry. Hopefully it will meet the same lack of success.”

I agree completely. The courts should act firmly in support of proportionality and strike down this kind of abuse of process. Fair notice should be supported and then due process and proportional action and punishment if appropriate. Copyright has no superior rights over any other law.

As regards the interviewer/interviewee situation I am most definitely not an expert in copyright, especially in the US, but that never stopped me giving my opinion …
It seems clear that the Marylin is correct in that the article written by the interviewer based on the interview is copyrighted to the interviewer or her employer. However that is a VERY different thing than copyrighting the content of the interview, the conversation and anything uttered in that conversation. It seems self evident to me that a conversation between two or more people cannot be copyrighted, for a start, and that includes comments or any other on the spot original form of expression including songs/poems etc which have never been expressed previously in physical form.

Marilynn – did you actually read the essay? From your comments, I suspect not. The article goes into more depth besides just why copyright was created.

I have previously read all 6 of your articles about copyright. I find your opinions quite black and white and don’t take into account the many shades of gray that are involved in copyright. Not sure if I could support your statement that you are an expert in copyright.

Mark, I was replying to you, not the article. And, yes, I’ve read the article. I still stand by my comment that why copyright was created and what it does in the real world are two different things. And woe be unto him who thinks the past of copyright and a little applied BS can save his butt from jail or fines when he misuses copyright in the real world.

I don’t agree with some of the strong arm tactics being employed, particularly by the newspaper industry, but this is all part of a war for copyright, and it’s up to the courts to settle this. I hope they can settle it fairly.

On my articles. The first rule of writing is to know your audience. My audience for my copyright articles is writers and interested readers, not copyright experts or wanna-be experts.

From a writer and reader’s standpoint, the general situation is black and white. For those who want to get a more varied view of copyright, there are the legal articles I link to at the bottom of each article.

Whether you consider me an expert or not, I am providing a valuable service because general overviews of the very complex subject of copyright are few and far between, particularly on publishing copyright. I spent several years doing research to write my free articles because no one else was providing the information in an accessible manner.

Branko, You might enjoy the fact that in my interview with author Jack Matthews from a few months back, Jack Matthews actually did compose a poem during the actual interview and reproduced another poem from an unpublished collection and republished a one page story from another unpublished work. There may be some question as to whether Teleread would have a claim to them as copyrighted works (although Jack matthews and I agreed that the interview itself would be CC-NC.

One thing about interviews is that the subject usually does not receive payment for the interview and therefore is in a prime position to be exploited.

@Marilynn Byerly: Perhaps you should try reading (or re-reading) William Patry’s latest book, “Moral Panics and the Copyright Wars”. Patry is both a lawyer and one of the country’s top copyright scholars.

He would probably agree with your distinction (“why copyright was created and what it does in the real world are two different things”), but not for the reasons you think. In the book, he explains in significant detail how copyright holders have been effective in creating the false moral panic that has demonized those who are on the other side. They have done so repeatedly over centuries to increase their monopoly over content.

Oh, those poor maligned pirate darlings! I want to hug them for being called thieves because they don’t pay for copyrighted materials. It must really hurt their self-esteem.

Seriously, copyright creators have been demonized in the same fashion. In a war, the first thing you do is demonize the enemy so people don’t feel bad about what happens to them.

I have been called all kinds of names because I say that people should respect copyright and pay the creator to use or read it.

Pretty theories like Patry’s are fine in an intellectual sense, but if it’s your copyright or income being threatened, you see the other side as thieves in the same way as you’d see someone who mugs you as a thief.

The simple truth is that the existence of copyright is valuable to both the creator and the user.

Sure, some knowledge–scientific papers, etc.,– will be created because other sources like universities and the government will pay for it, but entertainment like professionally written novels which are created from the creator’s time and cash will only exist as long as enough people respect copyright and pay for them.

Some say that people will still write without copyright, but I seriously doubt that the quality and quantity of works will continue. I’ve been writing as a pro for over ten years, and the glow of praise, great reviews, and awards fades away when I’m at my computer alone for hours a day when I could be doing something fun or something that will pay my bills. Without the justification to myself and my family of possibly making a decent income, I’ll have to stop writing as most authors eventually do.

Others say we will write without pay for the praise and response of our readers. Yeah, right. I offer hundreds of pages of free short stories and articles on my website. I get hundreds of hits a day, and most will stay and read a number of my stories or articles so they obviously enjoy them and my writing, but do you know how many people click on the bottom of the page to email me and thank me for this? One or two a year. That sure gives me no incentive to write any more free stuff.

Writers of fiction are very good at seeing all sides because we play both the hero and the bad guy in our stories. It’s a pity that those readers who think they deserve to be entertained without paying for it can’t do the same thing on this issue by looking at it from our side.

It’s not clear if you’ve read his book, but Patry makes no argument about the self-esteem of pirates. His descriptions of moral panics, particularly those involving copyright, illustrate how those instigating the panics demonize the other side to help create mythical outcomes that the data says either don’t exist or have not diminished the benefits provided to copyright holders.

There is scant evidence in book publishing that trade books are either heavily pirated or that the unauthorized copying is costing authors sales they would otherwise have had. There is limited evidence, some of it created through work I have done, that piracy is correlated with an increase in paid sales of trade books.

There are also publishers (Baen is an example) and authors (J.A. Konrath, most recently), for whom DRM and piracy are not seen as problems. They aren’t the only touchpoints, but there is data to suggest that piracy is not the end of content creation as we know it.

I’m somewhat at a loss to respond to your characterization of Patry’s “pretty theories”. You describe yourself in this thread as a “layman copyright expert”. Given that, you must know that Patry wrote the seminal treatise on copyright, and that he currently serves as Google’s counsel on the topic. If your end game here is to demonize (in the sense of invalidate) his credentials and boost your own, we probably don’t have much more to discuss.

When you’re a grunt on the front lines trying to stay alive, the war looks a lot different than if you’re safe at home discussing tactics.

As someone who is trying to make a living at writing, I see this copyright discussion from the viewpoint of being a foot soldier on the front lines with bullets flying from all sides. Meanwhile, Patry is tucked in all cosy with his law income writing about the esoterica of copyright and using his books to feed his law income. So, yes, indeed, I see copyright issues differently from Patry.

The piracy issue, its reality, and its consequences have been hijacked by several authors who have little lose. Doctorow makes his money as a celebrity “expert,” and through his paper book sales and his movie deals. The free ebooks feed the other sources of income.

Most writers don’t have their books in every bookstore like Doctorow, they don’t have movie deals like Doctorow, and no one would pay them a penny for their opinions. They do have everything to lose if the only readers they have read them for free.

Konrath is using the Doctorow Ponzi model to his own advantage at the moment, but I imagine he’ll regret it one day when the free ebooks eat his income to the point he can no longer make a living.

In the publishing industry and among us real writers, there’s all kinds of evidence that piracy hurts. For example, a close friend who writes very successfully for a major publisher just had her novella series cancelled because pirate downloads are rising drastically while her trade sales are dropping drastically. Even many of her loyal fans on her blog seem to take great pleasure in saying they read the pirated edition.

I hear stories like this all the time, and long-time writers who only sell ebooks are watching their own sales of new books and backlist fall while the illegal downloads keep rising.

Authors and their publishers can hold on for a bit, but, if the rising tide of piracy and falling sales continue, I hope everyone enjoys reading TWILIGHT novels, Stephen King, Doctorow, and a few other major players because they will be the only ones left standing.

I believe that writers are far too close to their subject to opine reliably on the subject. Publishers have too much vested interest. Hence both these parties see damage to their earnings at every corner and over every hill and in every mirage. It makes sense. I don’t believe any of the stories because they don’t make any sense, and sense if what counts. This is one good reason why non writers and non publishers are the most reliable points of view on this subject.

Howard, any shepherd dumb enough to let the wolves keep count of his sheep deserves what he gets.

It’s sad that authors keep offering evidence of how piracy hurts them, but people on the other side of the issue keep saying there is no evidence. I have lots of anecdotal evidence which is just as valuable as the other side’s anecdotal evidence. Talk about vested interests.

Howard, you forget that those people are very good at writing fiction. Clearly, their examples of non-fiction as exemplified here would never make it to any serious publication because they can’t research or list any bona fide references properly.

I have no axe to grind on this whatsoever. It is for those that claim damage from piracy to establish their point, not the other way around. The Music business did a a successful job of persuading politicians around the world of their case, despite an almost total lack of any substantial evidence, and much anecdotal evidence to the contrary. Their argument leaned almost exclusively on the inference that it ‘must have’ had an influence because so much of it was going on. Today we have a replay of those days and again there is no evidence whatsoever – other than anecdotal evidence – of such damage. I didn’t believe the music industry then and I don’t believe the publishing/writer groups now.
What I would say to them is that even if it were true, they need to wake up and realise there is NOTHING they can do about it. Piracy of music wasn’t stopped then or now. The same thing applies to eBooks now. The answer, or solution, is to establish fair pricing which gives ordinary readers the assurance they are not being ripped off. Right now that is not happening and there is a huge surge of piracy of eBooks. I myself have seen it done. The Publishers seem to think that it is a tap they can turn on and off at will but in my own view it is not. The ‘feeling’ of being ripped off lasts longer than the rip off pricing.

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